The struggle for equality - the legal is political

Women’s rights are human rights - Hillary Clinton’s epiphany from her speech at the 4th World Conference on Women in Beijing 26 years ago still resonates with us today, and has since inspired various proponents of pop feminism to print this sentence on mostly biodegradable sustainable T-shirts. While I am the proud owner of such a feminist fashion statement myself, we must not forget that in order for women’s rights to be human rights, women must be recognised by the law as right-holders in the first place. Considering that women were not legally entitled to open a bank account, buy a house, get an abortion, travel without their husbands’ consent or open a business in most parts of the world until the late 20th century, it may be interesting to look at how and why women have been not only practically, politically, socially but also legally considered as second-class legal personas for the longest time.

by Gloria Bozyigit

© Jolanda Zürcher

From mask to revolution

Right-holders, female or not, did not fall out of thin air. The law very early on distinguished between people entitled to hold rights and all others not enjoying such a privilege. We find the first concept of such distinct legal personality in Roman law in the form of ‘persona’. Interestingly, the term persona stems from the Etruscan term for mask (phersu). Persona in the sense of mask thus aims at delineating normal people/citizens/bodies from those exclusive people/citizens/bodies that, by virtue of the respective legal system, are to be considered as right-holders. Unsurprisingly, Roman law did not recognise women as ‘personae’. This exclusion of women from the realm of legal personhood persisted under civil and canon law provisions, subjugating women to male guardianship, until ideas emerging from the French Revolution sparked debates around citizens’, human and women’s rights. Olympe de Gouges, who prominently declared the “rights of women” in 1791, perceived the law to be a representation of the “general will”, thus inherently obligated to endow women and men with equal rights of participation. And while modernisation efforts of civil codes around Europe in the late 19th century led to an increase in women’s rights, these advances fell short of full and real legal equality. Marital status provisions as well as family law sustained de jure discrimination of women well throughout the 20th century, once again bestowing upon them a second-class status of legal personality.

The legal gender gap

In the past decades, the struggle for gender equality emerged as a point of concern for the international community. Among the efforts of the United Nations to tackle this issue was the adoption of the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979. Among the 30 Articles of the CEDAW, two specifically address full and equal participation of women in the legal system. Article 13 of CEDAW stipulates that appropriate measures shall be taken, in order to eliminate all discrimination women face vis à vis the right to family benefits, bank loans, mortgages and other forms of financial credit. Article 15 codifies that women shall be accorded equality with men before the law. Furthermore, Article 15 explicitly states that women must be accorded with “a legal capacity identical to that of men and the same opportunities to exercise that capacity”. Articles 13 and 15 of the CEDAW serve as perfect examples on how legal personality precedes the enjoyment of other rights. In countries where women are not regarded as being able to enjoy full legal personality they may not receive a bank loan, enter into contractual relationships or administer property without the consent of a male guardian. The current ‘Women, Business and the Law Report’ (2021) issued by the World Bank Group finds that on average, women still only have ¾ of the legal rights afforded to men. Among the reforms highlighted in the report are that Pakistani women can now register a business, women in Jordan must not be discriminated against in their access to financial services based on their gender, and the removal of barriers for Fiji women when applying for a passport. Within the last couple of years a new feminist stream of consciousness seems to have emerged, aimed at looking beyond commonly known forms of discrimination and inequality. Within this ambit the much debated gender pay gap is only the tip of the iceberg. We are confronted with a deeply rooted system of discrimination, permeating one of the essential layers of society - the legal system. And progress to close the legal gender gap has been slow. The World Bank Group estimates that it will take at least 30 more years at current speed to achieve “global legal gender parity”.

The Red Queen Effect

In ‘Through the Looking Glass’, the Red Queen famously reveals to Alice: “Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!” I do wonder if the Red Queen effect is haunting third wave feminism, as we have to seemingly struggle twice as much to preserve the status quo when it comes to gender equality. And run three times as fast if we want to achieve lasting change. In 2017, Saudi Arabia granted the humanoid robot Sophia the right to citizenship and the enjoyment of the respective rights without a male guardian - something that is not possible for Saudi women. The story of robot Sophia is exemplary for the twenty economies in which women still enjoy only half or fewer of the rights granted to men. And these twenty only represent explicit legal inequality. If we consider de facto legal equality, representation and access to justice, only laws in ten economies treat women and men equally.

In a counterfactual world, Hillary Clinton would have been the first female U.S. president, the CEDAW would have been fully implemented, and no Artificial Intelligence system would enjoy more rights than a woman. Living in reality is hard. It may be time to go back to one of Olympe de Gouge’s postulations: “Women wake up - recognize your rights!”. What a brilliant T-shirt slogan!

Gestern war Internationaler Frauentag. Anlässlich dessen veröffentlichen wir eine Woche lang Artikel zum Thema Gleichberechtigung, Frauen und Frauenrechte. Den Auftakt macht dieser Überblick über die Geschichte der Rechte der Frauen. Dieser Artikel stammt aus der Printausgabe "Sex & Macht". Mehr könnt ihr hier lesen.